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Judicial Enforcement

A student who entered kindergarten the year a lawsuit was filed arguing that Albany shortchanges the city's schools probably would have graduated by now (or perhaps dropped out).

And despite that passage of time -- 12 years, to be exact -- the case still has not been resolved.

The state suit was filed in 1993, and it came a few years after the resolution of another suit that had a profound impact on the city, by forcing the biggest overhaul of city government since the 19th century. From the beginning, both cases heralded major potential consequences, but the government and, in turn, the legal system, responded in strikingly different ways.

In the earlier case, the courts ruled that the Board of Estimate -- a super-legislative body of citywide officials and borough presidents -- violated the one-person, one-vote principle, since the Staten Island borough president had as much say over city affairs as, say, the Brooklyn borough president. The judges did not specify a remedy, but even before the case was finally adjudicated, the city set in motion a charter revision process that led in 1989 to New York's current system of municipal government, with a stronger mayor and City Council.

In the school financing case, Justice Leland DeGrasse of the State Supreme Court in Manhattan ruled in January 2001 that the state had, in fact, shortchanged the city's schools. He ordered the governor and Legislature to devise a remedy. They dawdled, because spending more money on education presumably would mean raising taxes, reducing other services or both. On Feb. 14, he proposed his own solution, ordering that an additional $5.6 billion be spent annually to ensure the city's public school children the opportunity for the sound basic education they are guaranteed under the State Constitution and that $9.2 billion more be spent over five years to provide adequate places in which to learn.

But Gov. George E. Pataki is appealing the ruling, and has been unable to muster a school financing solution that the Legislature, much less the judge, would agree to. By failing to act, they have also plunged the courts into uncharted waters.

"This goes way beyond what the court did with Board of Estimate or in any other case that I know of relating to New York," said Eric Lane, an architect of the 1989 City Charter. "In the Board of Estimate case, the impact of the decision was very political. In this case, the role the court is playing is very political. It shows a no doubt well-deserved disrespect for our governing institutions, but it also creates a number of substantial problems that should be resolved politically."

Judges typically prohibit the other branches of government from doing one thing or another, rather than command them to do something. This case, though, is by no means the first time courts have ordered a systemic remedy. (Suits placed the city's jail system largely under the control of a federal judge whose remedies for overcrowding actually prompted the city to free hundreds of prisoners two decades ago.)

Still, this is that rare case when a judge imposes a very specific financial solution, reviving complaints that the judiciary is usurping the political prerogatives of elected officials. One wrinkle in that way of thinking is that when Justice DeGrasse was elected to the State Supreme Court, he got more votes than Assembly Speaker Sheldon Silver of Manhattan or Senate Majority Leader Joseph L. Bruno, two of the three state officials who have the power to resolve the school financing matter without judicial intervention. The third is Governor Pataki.

Finding $5.6 billion more a year for the city's schools -- and additional billions to apply the ruling statewide -- would mean choosing among politically unpalatable alternatives, which is why the governor and Legislature have taken the calculated risk of punting.

"The abdication is a political opportunity," said Richard D. Emery, who represented the plaintiffs in the Board of Estimate suit. "They made a calculation that they are going to get beat up less if the courts do it than if they do it."

But the courts are typically even more reluctant to dictate specific financial remedies, much less enforce them.

"Here the court is saying, "I am ordering that the governor and the two houses of the Legislature come to an agreement for the expenditure of an amount of money that I am directing."' said Richard Rifkin, the deputy attorney general who has argued the case for the state. "I don't know of any court that has ever done that. And the problem with the mandatory injunction is there's no state official that can comply with it. Let's say everyone is acting in the best of faith. They may not agree."

In New Jersey, similar litigation has been going on for a generation, which is one more reason Justice DeGrasse's order may prove most effective as a cudgel for a negotiated settlement.

"That would be a bird in the hand," said Michael A. Rebell, the executive director of the Campaign for Fiscal Equity, which brought the suit on behalf of students and parents. "The courts have a principal role of clarifying what the constitutional values are, but the bottom line is sooner or later the governor and the Legislature are going to have to come up with the details. And it's better to do it sooner."